James H. Dupuis, Jr. Dupuis & Polozola The Woodlands, TX February 25, 2016

1. How Slow Can You Go?: Lease Maintenance Issues and Strategies in a Low Oil Price Environment James H. Dupuis, Jr. Dupuis & Polozola The Woodlands, TX February 25, 2016

2. Drilled but Uncompleted Wells (DUC) http://www.bloomberg.com/news/articles/2015-04-23/u-s-shale-fracklog-triples-as-drillers-keep-oil-out-of-market-i8u004xl (April 23, 2015)

3. DUC contd. http://seekingalpha.com/article/3907176-look-u-s-oil-production-2016

4. DUC contd. • Are they legal? • North Dakota restrictions • Does lease allow it? • Still within PT? • Agreement with Lessor to delay completion • Is there an implied obligation to complete within a specified time?

5. Lease Maintenance after the PT (1) Production in paying quantities (PPQ) (2) Savings clause • Shut In • Continuous Operations • Continuous Development • Pooling

6. Production in Paying Quantities (PPQ)

7. PPQ Test: Clifton v. Koontz • 1: Income > operating and marketing costs? • No requirement to show that well will ever pay out • 2: “…whether or not under all the relevant circumstances a reasonably prudent operator would, for the purpose of making a profit and not merely for speculation, continue to operate a well in the manner in which the well in question was operated.” • Lessor has burden of proving both parts

8. PPQ Part 1 • What is “operating and marketing” cost? • Lifting expenses and fixed or periodic expenditures in the daily operation of the well • Taxes, labor, repairs • Overhead directly related to production (not overhead that continues regardless of production) • Depreciation on salvageable equipment • NOT capital expenses, such as lease acquisition, drilling and equipping, or reworking (“sunk” costs) • “Breakeven point”

9. PPQ Part 1 • WTI Breakeven point: December 2014 http://www.rystadenergy.com/AboutUs/NewsCenter/Newsletters/UsArchive/us-q1-2015

10. PPQ Part 1 • WTI Breakeven point: early 2016 http://oilprice.com/Energy/Crude-Oil/Why-US-Shale-Is-Not-Capitulating-Yet.html

11. PPQ Part 1 • Downward trend http://www.rystadenergy.com/AboutUs/NewsCenter/Newsletters/UsArchive/us-q1-2015

12. Reduction in Breakeven Point • Lower costs • Sweet spots • Longer laterals • Multiple wells from one surface location • Improved fracking technologies

13. PPQ Part 2 • Reasonably Prudent Operator Standard • … whether or not, under all the relevant circumstances, a reasonably prudent operator would, for the purpose of making a profit and not merely for speculation, continue to operate a well in the manner in which the well in question was operated.

14. PPQ Part 2 • Is it speculative to hold an unprofitable well with the expectation that prices will rise? • If not, how long can an operator hold? • Reasonable period of time under the circumstances • Courts do not look to any specific time/accounting period to determine profitability • TX cases: more than 8 months; 21 months

15. No PPQ?: Savings Clauses

16. Shut In Royalties • Permits the lessee of a gas well to shut in the well in return for making payment of a contractually specified amount to the lessor.

17. Shut In Royalties • Constructive production • TX: Strict compliance • Timely • Right amount • To the right entity • Payment to original Lessor rather than Lessor’s successor in interest after conveyance of the minerals and notice thereof to Lessee terminated lease

18. Shut In Royalties • Compare OK: Not a substitute for production • Compensation/royalty provision • Lease will not automatically terminate, only breach of a lease covenant

19. Shut In Payments • Compare LA: It depends • Shut in payments classified as either royalty or rental, depending on lease form • Payee? • Time for payment? • Consequences for failure to pay?

20. Shut In Royalties • Well must be capable of PPQ • Can be turned “on” and begin flowing without additional equipment or repair

21. Shut In Royalties • Well must be capable of PPQ • Marketable quantityvs. quality • Un-fracked well?

22. Shut Ins vs. Depressed Market • Can you shut in a well because of a depressed market? • Lease form; would a Reasonably Prudent Operator shut in? • If at any time after the expiration of the primary term of a lease that . . . Oil or Gas is not being produced for lack of suitable production facilities . . . or lack of a suitable market… http://www.infomine.com/investment/metal-prices/natural-gas/5-year/

23. Continuous Operations

24. Continuous Operations • “Operations” for drilling or reworking a well are substitute for PPQ • Clauses are construed liberally

25. Levels of Scrutiny • Operations • Lowest • Drilling Operations • Middle • Actual Drilling Operations • Highest

26. What “operations” are sufficient? • Putting up part of an oil derrick, beginning work on a well to be used to supply water for drilling, and setting a joint of surface casing? • Putting in a road/constructing drilling pad? • Beginning a survey the day before end of PT and putting a stake in the ground on the last day? • Obtaining a drilling permit from RRC? • No, physical activity is required

27. Is physical activity alone sufficient? • What if physical operations are being performed while evaluating results from a nearby well and attempting to obtain financing? • Must INTEND (in good faith) to complete a well, without contingencies

28. Drilling Operations • Courts interpret this more strictly than “operations” • Generally requires operations “preliminary to the actual work of drilling”

29. Drilling Operations: Ex. 1 Yes • Clearing location • Digging working pits and reservoirs • Moving in a drilling rig • Delivering a draw-works to the location • Start rigging-up

30. Drilling Operations: Ex. 2 Yes • Making a location for the well • Bringing materials to location • Digging a slush pit and well for water • Erecting steel derrick

31. Drilling Operations: Ex. 3 No • Long-stroking an existing oil well • Laying pipeline to a gas wells • Doing electrical work on the lease • Installing, checking, and repairing flow lines • Replacing a tank • Allowing all of the equipment to remain on

32. Drilling Operations Ex. 4 No • Back dragging of grass with a back hoe on the last day of the primary term to mark the location of a road

33. Actual Drilling Operations • No case law, but likely requires spudding • i.e. actual penetration of the ground by a drill bit

34. Continuous Development & Retained Acreage Clauses

35. Continuous Development Clause • After initial well, requires additional wells within certain time periods • Sanction for noncompliance is partial termination of lease • Retained Acreage Clause • Does not establish a specified drilling program or requires wells to be drilled within certain times • Simply states that each well will hold only a certain number of acres

36. … lessee shall conduct a continuous drilling program on the lands covered by this lease, with no more than 120 days between the completion of one well and the commencement of operations for the drilling of a succeeding well. Upon cessation of such continuous drilling program, this lease shall terminate as to all lands covered hereby except for lands that are contained within a spacing or proration unit for which there is a producing oil or gas well.

37. Time Between Operations • Completion of one well … • Undefined – drilled and logged on one end; on the other end, drilled, cased, perforated, stimulated, tested, and physically connected to a pipeline or outlet. • Reaches TD • Potential test report with RRC • Rig release

38. Time Between Operations • Completion of one well … • “As used herein, completion shall be deemed to be the earliest of the following dates: (1) the date on which the initial potential test is run, (2) the date on which a dry hole is plugged, (3) the date 30 days after the date on which total depth is reached, or (4) the date certified to the RRC as the date a well has been completed as a producing well.”

39. Time Between Operations • Commencement of a well … • i.e. drilling operations • “…the date lessee commences actual drilling with a rig capable of reaching depths from which lessee may, in good faith, anticipate the production of oil or gas.” • Deep rights leases?

40. Time Between Operations • Accumulate time between wells? • Substitute well if first well is lost? • Reworking of a previously drilled well?

41. Size/Amount of Retained Acreage • Specific Number? • Tied to governmental authority? • Contiguous? • Yes. Mayfield v. DeBenevides, 693 S.W.2d 500 (Tex. App. – San Antonio, 1985) • Designation/Release required?

42. Size/Amount of Retained Acreage 3/4 MI RA Tract 1 RA Tract 2 RA Tract 1 Does a well continue to maintain a lease as to specified acreage after the well has ceased producing?

43. Size/Amount of Retained Acreage RA Tract 1 RA Tract 2 … lease is maintained as to 40 acres designated as a well block around each producing well. Humphrey v. Seale, 716 S.W. 2d 620 (Tex. App. – Corpus Christi 1986)

44. Effect of other lease clauses “Notwithstanding anything in this lease agreement to the contrary” lessee shall release all rights in zones and formations that are not producing in paying quantities six years from the effective date hereof …

45. Effect of other lease clauses “Notwithstanding anything in this lease agreement to the contrary” lessee shall release all rights in zones and formations that are not producing in paying quantities six years from the effective date hereof … • Well temporarily plugged two months before the date; and production restored ten days after

46. Effect of other lease clauses “Notwithstanding anything in this lease agreement to the contrary” lessee shall release all rights in zones and formations that are not producing in paying quantities six years from the effective date hereof … • Well temporarily plugged two months before the date; and production restored ten days after • Rights governed by 90 day cessation of production clause Judice v. Mewbourne Oil Co., 890 S.W.2d 180 (Tex. App – Amarillo 1994; aff’din part, rev’d in part, 939 S.W.2d 133 (Tex. 1996).

47. Lease Language & Field Rules • “The term ‘well unit’ shall mean the proration unit created for a well as prescribed or permitted by the applicable rules…” • Field Rules provide for standard proration units of 320 acres, but allow for up to 640 acres for maximum allowable • Assign 320 acres in P-15 with RRC

48. Pooling vs. Retained Acreage • Pooling clause: 160 acre pooled units • Retained Acreage: 160 acre proration units… “provided that….any such units may embrace as much additional acreage as may be so prescribed or permitted…” • Special Field Rules allow for up to 320 ac units

49. Pooling vs. Retained Acreage Pooling Clause RA Clause

50. Good Faith vs. Bad Faith Pooling • Lessee must pool in good faith • Even if unit formed is authorized by lease • Whether pooling in bad faith is an issue of fact • Factors: • Failure to consider geology • Pooling to maintain leases (timing) • Inclusion of unproductive acreage/acreage outside of a well’s drainage pattern • Gerrymandering (irregular shaped units)